Simple, Fair, Discretionary Administrative Law

This article discusses the immense contribution Lord Cooke made to the development of administrative law in New Zealand. It focuses on his desire for simplicity, his pursuit of fairness and his acceptance of discretion. In particular, this article examines the different ways this tripartite set of themes manifest themselves in and throughout the orthodox tripartite grounds of judicial review in New Zealand.

The article is in a special issue marking the passing of Lord Cooke, which is to be formally launched early next month.

Course Outline

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.